such refusal in a criminal prosecution on the ground that their classifications were not given fair consideration by their boards. In order to obtain a judicial determination of such issues such registrants must first submit to induction and raise the issue by habeas corpus. (See Ex parte Stanziale (1943), 3d Cir., 138 F. 2d, 312, cert. den., 320 Ù. S. 797.) Since a habeas corpus proceeding is not available to registrants ordered to accept employment under section 5 (n), they are in a status different from registrants ordered to submit to induction into the armed forces, and thus are permitted under the bill to raise these issues in the criminal proceeding.

The provisions above described for meeting manpower requirements in activities, occupations, and endeavors designated by the Director of War Mobilization and Reconversion as essential to the prosecution of the war do not in any way affect the regular selective-service processes for meeting the needs of the armed forces for additional fighting men. Any registrant liable to work under section 5 (n), who violates a duty to work imposed upon him by such section, may be drafted into the armed forces. (See sec. 5 (n) (8).)

The so-called Tydings amendment (sec. 5 (k) of the Selective Training and Service Act) is not affected in any manner by this bill. (See sec. 5 (n) (5).)

Registrants who become employed as a result of a request or order under section 5 (n) (4) are entitled to the reemployment benefits of section 8 (b), (c), (e), and (g) of the Selective Training and Service Act (see sec. 2 of the bill), to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (see sec. 6 of the bill), and to allowances for travel, and subsistence during travel, to the new place of occupation and, at the conclusion of employment, back to their homes or places of original departure (see sec. 3 of the bill).

Section 5 (n) (6) provides that persons who are found to be conscientiously opposed, by religious training and belief, to participating in civilian war activities shall, in lieu of being ordered to employment in any such activity, be ordered to employment in some other activity in the national interest.

Finally, section 5 of the bill provides that the provisions of section 5(n), under which persons may be "frozen" in, or ordered to, employment, shall cease to apply on the date of the termination of hostilities in the present war (as proclaimed by the President or as specified in a concurrent resolution of both Houses, whichever is earlier) or on such earlier date as may be specified by concurrent resolution of both Houses.

CONSTITUTIONAL BASIS

The war power of the National Government is "the power to wage war successfully" *. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense (Hirabayashi v. United States (1943) 320 U. S. 81, at 93).

In the exercise of its war powers and the power to raise and support armies and maintain a navy, Congress enacted the Selective Draft Act of 1917 and the Selective Training and Service Act of 1940. Insofar as these acts compelled service in the armed forces of the United States, they are immune from constitutional attack, including attack on the

ground that such compulsion constitutes involuntary service under the thirteenth amendment (Selective Draft Law Cases (1918) 245 U. S. 366). Both acts made provision for deferment from such service-not as a matter of grace to individuals eligible therefor, but in order to insure that those individuals who were relatively more essential to the civilian war activities at home would be kept at home. Thus there can be no question but that Congress can require as a condition to continued deferment from service in the armed forces that such individuals continue engaged in such activities. Whether, if they cease to engage in such activities, Congress can provide for their induction into the armed forces with a less favorable status than others in such forces is a question which is not presented by the bill.

The question presented is whether Congress can require that those permitted to stay at home perform work without which the war cannot be waged successfully, and make violators of such requirement subject to fine and imprisonment. A similar question has been considered in the cases dealing with conscientious objectors. The conscientious objector has been permitted to remain at home and under section 5 (g) of the Selective Training and Service Act of 1940 is required to perform work of national importance under civilian direction. Violation of this requirement subjects the conscientious objector to a penalty of a fine of not more than $10,000, or imprisonment for not more than 5 years, or both. The constitutionality of this provision has been considered in at least seven circuits (Heflin v. Sanford (1944), 5th cir., 142 F. 2d 799; Hopper v. United States (1944), 9th cir., 142 F. 2d 181; Rase v. United States (1942), 6th cir., 129 F. 2d 204; Roodenko v. United States (1944), 10th cir., decided December 22, 1944; United States v. Van Den Berg (1944) 7th cir., 139 F. 2d 654; Weightman v. United States (1944), 1st cir., 142 F. 2d 188). See also United States v. Osborne ((1944) D. C. N. Y., 54 F. Supp. 984) and United States v. Brooks ((1944) D. C. N. Y., 54 F. Supp. 995). In each case the decision of the court on the constitutional question was unanimous. In Heflin v. Sanford, supra, the court, speaking through Judge Sibley, said:"

The answer to appellant's complaint lies in the broad principle that the thirteenth amendment has no application to a call for service made by one's government according to law to meet a public need, just as a call for money in such a case is taxation and not confiscation of property. Where by law able-bodied male persons between 25 and 45 years were required to labor on the highways of the county for 6 days each year, failure being punished as a crime, and such a person was convicted and on habeas corpus contended there was violation of the thirteenth amendment, it was held that such service, like compulsory service in the Army, on juries, and the like, was no violation of the amendment (Butler v. Perry, Sheriff, 240 U. S. 328, 36 S. Ct. 258, 60 L. Ed. 672). During the First World War convictions for refusing Army service were attacked as violations of this amendment. The contention was overruled without being dignified by being argued (Arver v. United States, 245 U. S. 366, 38 S. Ct. 159, 62 L. Ed. 349, L. R. A. 1918 C, 361, Ann. Cas. 1918 B, 856). The service required here is "work of national importance," that is to say it is of a public nature. It is in lieu of Army service which might have been required of appellant, the substitution being allowed as of grace because of conscientious objection to military service. The present war is described by its authors as "total war," meaning that every means of destruction will be used, and men, women, and children alike killed. It means also that total effort may be necessary to resist it, men, women, and children all doing what they can. Such a total call has not yet been made by the United States, but is within its power under those parts of the Constitution which authorize Congress to declare war and raise and equip armies. There can be no doubt whatever that Congress has the constitutional power to require appellant, an able-bodied man,

to serve in the Army, or in lieu of such service to perform other work of national importance. The thirteenth amendment abolished slavery and involuntary servitude, except as a punishment for a crime, but was never intended to limit the war powers of government or its right to exact by law public service from all to meet the public need.

In the case of Butler v. Perry, cited in the above opinion, the Supreme Court, speaking through Mr. Justice McReynolds, said, at pages 332 and 333:

By their several constitutions the States within the limits of the Northwest Territory prohibited involuntary servitude substantially in the language of the 1787 Ordinance, and with the possible exception of Wisconsin, all of them early enacted and long enforced laws requiring labor upon public roads.

Utilizing the language of the Ordinance of 1787, the thirteenth amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our Government, and the term "involuntary servitude" was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the Army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. . In the case of United States v. Osborne, supra, the Court, at page 986, said:

We are not concerned with the power to conscript Individuals in time of peace. We are concerned with that power in time of war. The conclusion, it seems to this Court, based both upon reason and authority, is inescapable that Congress has full power to conscript individuals for work of national importance under civilian direction in time of war.

LETTER TO THE PRESIDENT FT M THE CHIEF OF STAFF OF THE ARMY AND THE CHIEF OF NAVAL OPERATIONS

JANUARY 16, 1945.

DEAR MR. PRESIDENT: As the agents directly responsible to you for the conduct of military operations, we feel that it is our duty to report to you the urgent necessity for immediate action to improve the situation relative to the acute need for young and vigorous replacements for the Army and Navy and to provide the necessary manpower to increase the production of critical items of munitions, accelerate ship construction, and effect the rapid repair of damaged vessels.

Personnel losses sustained by the Army in the past 2 months have, by reason of the severity of the weather and the fighting on the European front, taxed the replacement system to the breaking point. The Army must provide 600,000 replacements for overseas theaters before June 30, and, together with the Navy, will require at total of 900,000 inductions by June 30.

Losses or wastage of equipment due to the German offensive and winter fighting conditions must be made good, and there must also be provided the equipment for eight French divisions and for the accumulation of reserves and equipment which do not exist at the present time. It is estimated that 700,000 industrial workers must be added to the force producing Army and Navy munitions and supporting industries in the next 6 months if our urgent needs are to be met.

The increased intensity of the operations in the Pacific, particularly the operations of the fleet in support of the Philippine operations, has resulted in extensive damage to naval vessels, many of which require major repairs. Due to the overall shortage of ship workers, this increased repair load is already being reflected in a slow-down in the construction of new ships which have been counted on for future operations.

New devices and weapons in production and ready for production require additional facilities and civilian labor. The fast tempo and increased damage have introduced demands for additional naval personnel in the way of replacements. Items of particular moment are replacements for casualties and war-fatigued men, particularly pilots and crews for aircraft.

The Navy also requires a considerable number of additional Medical Corps personnel.

Due to ever-increasing demands for the support of the large forces, Army and Navy, deployed overseas and for the minimum relief of liberated areas, the availability of shipping also presents problems calling for early solution. The building, repair, and manning of ships of the merchant marine require to be taken fully into account in the over-all military situation.

You are intimately familiar, Mr. President, with the great importance of regaining the offensive on the western front and pressing it, together with operations against the Japanese, with constantly increasing intensity in the months to come. To this end, therefore, we feel that the United States should make every conceivable effort to enable the armed forces to carry out your instructions. E. J. KING, G. C. MARSHALL, Chief of Staff.

Chief of Naval Operations.

CHANGES IN EXISTING LAW

In compliance with paragraph 2a of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, existing law in which no change is proposed is shown in roman):

SECTION 5 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940

SEC. 5. (a) Commissioned officers, warrant officers, pay clerks, and enlisted men of the Regular Army, the Navy, the Marine Corps, the Coast Guard, the Coast and Geodetic Survey, the Public Health Service, the federally recognized active National Guard, the Officers' Reserve Corps, the Regular Army Reserve, the Enlisted Reserve Corps, the Naval Reserve, and the Marine Corps Reserve; cadets, United States Military Academy; midshipmen, United States Naval Academy; cadets, United States Coast Guard Academy; men who have been accepted for admittance (commencing with the academic year next succeeding such acceptance) to the United States Military Academy as cadets, to the United States Naval Academy as midshipmen, or to the United States Coast Guard Academy as cadets, but only during the continuance of such acceptance; cadets of the advanced course, senior division, Reserve Officers' Training Corps or Naval Reserve Officers' Training Corps; and diplomatic representatives, technical attachés of foreign embassies and legations, consuls general, consuls, vice consuls, and consular agents of foreign countries, and persons in other categories to be specified by the President residing in the United States, who are not citizens of the United States, and who have not declared their intention to become citizens of the United States, shall not be required to be registered under section 2 and shall be relieved from liability for training and service under section 3 (b).

(b) In time of peace, the following persons shall be relieved from liability for training and service under section 3 (b) and from the liability to serve in any reserve component of the land or naval forces imposed by this Act:

(1) Any person who shall have satisfactorily served as an officer or enlisted man for at least three consecutive years in the Regular Army, Navy, Marine Corps, or Coast Guard before or after or partially before and partially after the time fixed for registration under section 2, or any enlisted man who has been or is hereafter honorably discharged from the Regular Army or the Coast Guard for the convenience of the Government within six months prior to the completion of his regular three-year period of enlistment: Provided, That any person who has had such prior service and who has already been inducted for service may upon application be discharged and shall not be liable for further training and service in time of peace.

(2) Any person who as a member of the active National Guard shall have satisfactorily served as an officer or enlisted man for at least one year in active Federal service in the Army of the United States, and subsequent thereto for at least two consecutive years in the Regular Army or in the active National Guard, before or after or partially before and partially after the time fixed for registration under section 2; or any person who as a member of the Naval Reserve or Marine Corps Reserve shall have satisfactorily served for at least

three consecutive years on active duty before or after or partially before and partially after the time fixed for such registration; or any person who as a member of the Naval Reserve or Marine Corps Reserve shall have satisfactorily served for at least one year on active duty and for at least two consecutive years in the Regular Navy or Marine Corps or with an organized unit of the Naval Reserve or Marine Corps Reserve, before or after or partially before and partially after the time fixed for such registration.

(3) Any person who is an officer or enlisted man in the active National Guard at the time fixed for registration under section 2, and who shall have satisfactorily served therein for at least six consecutive years, before or after or partially before and partially after the time fixed for such registration.

(4) Any person who is an officer in the Officers' Reserve Corps on the eligible list at the time fixed for registration under section 2, and who shall have satisfactorily served therein on the eligible list for at least six consecutive years, before or after or partially before and partially after the time fixed for such registration.

(5) Any person who is an officer or an enlisted man in the organized Naval Reserve or the organized Marine Corps Reserve at the time fixed for registration under section 2, and who shall have satisfactorily served therein for at least six consecutive years, before or after or partially before and partially after the time fixed for such registration or any person who is an officer or an enlisted man in the Naval Merchant Marine Reserve or Volunteer Naval Reserve or Volunteer Marine Corps Reserve at the time fixed for registration under section 2, and who shall have satisfactorily served therein for at least eight consecutive years, before or after or partially before and partially after the time fixed for such registration.

(c) (1) The Vice President of the United States, the Governors, and all other State officials chosen by the voters of the entire State, of the several States and Territories, members of the legislative bodies of the United States and of the several States and Territories, judges of the courts of record of the United States and of the several States and Territories and the District of Columbia, shall, while holding such offices, be deferred from training and service under this Act in the land and naval forces of the United States.

(2) The President is authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service under this Act in the land and naval forces of the United States, of any person holding an office (other than an office described in paragraph (1) of this subsection) under the United States or any State, Territory, or the District of Columbia, whose continued service in such office is found in accordance with section 10 (a) (2) to be necessary to the maintenance of the public health, safety, or interest.

(d) Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act.

(e) (1) The President is authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service under this Act in the land and naval forces of the United States of any or all categories of those men whose employment in industry, agriculture, or other occupations or employment, or whose activity in other endeavors, is found in accordance with section 10 (a) (2) to be necessary to the maintenance of the national health, safety, or interest. The President is also authorized, under such rules and regulations as he may prescribe, to provide for the deferment from training and service under this Act in the land and naval forces of the United States (1) of any or all categories of those men in a status with respect to persons dependent upon them for support which renders their deferment advisable, and (2) of any or all categories of those men found to be physically, mentally, or morally deficient or defective. For the purpose of determining whether or not the deferment of men is advisable because of their status with respect to persons dependent upon them for support, any payments of allowances which are payable by the United States to the dependents of persons serving in the land or naval forces of the United States shall be taken into consideration but the fact that such payments of allowances are payable shall not be deemed conclusively to remove the grounds for deferment when the dependency is based upon financial considerations and shall not be deemed to remove the grounds for deferment when the dependency is based upon other than financial considerations and cannot be eliminated by financial assistance to the dependents. The President is also au